Thursday, December 22, 2011

Well, we have about a week left in 2011, time that maybe you as a landlord or tenant can use to get acquainted with what is coming in 2012.

Tenants Smoking Ban: Beginning January 1, 2012, a residential landlord can prohibit the smoking of cigarettes and other tobacco products on the property, including any dwelling unit, building, other interior or exterior area, or the premises on which the property is located. For new tenants on or after January 1, 2012, the areas where smoking is prohibited must be stated in the lease or rental agreement. For preexisting tenants before 2012, a new provision prohibiting smoking is a change in the terms of tenancy that requires adequate written notice, depending on whether the tenancy is month-to-month or for a fixed term.

Tenants Displaying Political Signs: Effective January 1, 2012, a residential tenant can generally display political signs related to elections, legislative votes, initiatives, and other political matters as specified, but the landlord can make reasonable restrictions as to location, size, and duration of display. In a single-family dwelling, a tenant’s political signs can be displayed from the yard, window, door, balcony, or outside wall of the leased premises. In a multifamily dwelling, a tenant’s political signs can be posted in the window or door of the leased premises. A landlord can restrict the size of a political sign to six square feet. A landlord can also prohibit a tenant from displaying political signs that violate local, state or federal law, or a lawful provision in an HOA’s governing documents. A tenant must remove political signs in compliance with time limits set by local ordinance, or absent such time limits, the landlord can reasonably restrict the posting of a sign to 90 days before an election or vote, and its removal within 15 days after the election or vote.

Tenants Recycling Rights: Commencing July 1, 2012, a multifamily residential dwelling of five or more units (or a multifamily residential dwelling or business that generates more than four cubic yards per week of commercial solid waste as defined) must arrange for recycling services. The intent of this law is to address the challenges local governments are facing in reducing solid waste disposal in multifamily properties. The required recycling services are to be consistent with state or local laws, to the extent that these services are offered and reasonably available from a local service provider. The property owner of a multifamily residential dwelling may require tenants to source separate their recyclable materials to aid in compliance with this law.

So, landlords start issuing notices of a ban on smoking now. Tenants, find somewhere else to smoke. Is it a coincidence that the law on tenants displaying political signs goes into effect in an election year? Interesting. Well, I guess we will be seeing a lot of Obama campaign signs and….Romney…Gingrich…who knows – signs. As for recycling services, it shouldn’t be too hard to comply with this law. Most residences have that blue and green garbage can designated for recyclables. Landlords can call their local city sanitation unit to get more bins.

Wednesday, September 28, 2011

An estimated 10% of homes in the Unites States are in the process of being foreclosed upon. So what do you do if you are a tenant in a home or building that is being foreclosed upon?

The Tenant's Right to Possession
Long ago, the California Supreme Court held that the foreclosure of a mortgage ended not just the leasehold but the lessee's (tenant's) right of possession. This is because there is no contract that is entered into between the new purchaser (whoever buys the building from the bank) and the tenant. The purchaser may, therefore, treat the tenants as an occupant without right, and maintain ejectment for the premises (eviction).

California code of civil procedure section 1161a also allows the buyer at a foreclosure sale to bring an unlawful-detainer (eviction) action against the former homeowner or their tenants following service of a notice to quit. That same code section requires 60-days notice to quit for rental housing units. The notice also needs to have a cover sheet explaining the procedure for eviction. If the notice to quit gives at least 90-days notice, the notice may explain the eviction process instead of including a cover sheet.

The Protecting Tenants at Foreclosure Act of 2009 mandates 90-days notice to many residential tenants. This applies to a foreclosure on a federally-related mortgage loan or on any dwelling or residential real property after the date of enactment of the Act. This Act gives a tenant facing an eviction action a defense to raise if the new purchaser did not provide proper 90-days notice.

The Tenant's Liability for rent to the New Owner
Because foreclosure extinguishes the landlord-tenant relationship, the buyer has no contract with the occupying former tenant and cannot demand rent. This means the buyer cannot evict a tenant on the basis of a three-day notice to pay rent or quit before the 90- or 60-day notice period expires. If the new owner accepts rent, this creates a new month-to-month lease.

The Security Deposit
California civil code section 1950.5 governs the disposition of the security deposit. Landlords whose interest in their properties terminate may do two things. They may either transfer the security deposit to the new owner, and notify the tenant, or they may return it to the the tenant after making lawful deductions. If the landlord elects to return the security deposit to the tenant, it must be returned with an accounting of deductions made.

It is important to note that landlords often lose their rental properties to foreclosure because they do not have money, so the landlord may not be able to come up with the tenant's security deposit.

The important take-away: Most residential tenants will require 90-days notice under federal law. Other residential tenants will still require 60-days notice. Foreclosed tenants also owe no rent to the new buyer.

New purchasers and banks will often not follow the law and try to evict tenants without proper notice, or with no notice. If you are a tenant facing eviction due to foreclosure please contact The Law Office of Veronica R. Guzman.

Portions of this article are excerpted from "Your Rental Unit is in Foreclosure: Now What?" a publication of the State Bar of California. www.calbar.org

Thursday, August 11, 2011

Recently, I spoke about discrimination in screening tenants and in the landlord-tenant relationship. Any prohibited rental discrimination practice normally may be effectively redressed under California state law – the California Fair Employment and Housing Act, and/or the California Unruh Civil Rights Act. A discrimination claim can usually only be upheld when the discrimination is against a protected class.

The audience that I was speaking to had the most interest in the situation of renting to registered sex offenders. I can confidently say that in discrimination cases using Federal law, sex offenders are not a protected class. But things get strange on the California level.

California Penal Code section 290.46 prohibits the unauthorized use of registered sex offender identifying information obtained from the California “Megan’s Law” website for purposes relating to “housing accommodations.” However, that prohibition does not itself make registered sex offenders a “protected class” under Unruh or the Fair Employment and Housing Act. Sex offenders may be denied housing to protect a person at risk according to Penal Code section 290.46.

I know that any landlord who finds out that a prospective tenant is a registered sex offender will not want to accept the individual as a tenant. That is because sex offenders present a risk to the landlords tenants, no landlord wants to take that risk, especially if children are in the building. The law is on the landlord’s side in this case.

But what if the registered sex offender is already a tenant and the landlord later learns of this status. Well, a registered sex offender cannot be evicted simply on the basis of his status. This is a tricky situation because the sex offender could certainly present a risk to other tenants, and a landlord has a duty to make his premises safe for his tenants. Other tenants may also threaten to leave if the landlord doesn’t evict a known registered sex offender.

The landlord in this situation must stick to the law. One way to terminate the tenancy is simply by notice. A periodic tenancy (i.e. month-to-month) may be terminated for any reason by giving notice – usually a 30 day notice. This type of notice is subject to discrimination, retaliation and other rent control limitations. A tenant’s breach of a material term in the lease also gives the landlord the right to terminate. Finally, mutual consent is an option for termination. The parties may mutually agree to a termination by “surrender”.

Be careful about denying a prospective tenant or terminating a tenancy based solely on the status of a registered sex offender. The penalties could include actual damages, treble damages with a minimum of $250, attorney's fees, exemplary damages or a civil penalty not exceeding $25,000. Remember, in any action, it is the individual claiming discrimination who has the burden of proving the discrimination took place.

As a final note to landlords: Every lease or rental agreement entered into on or after July 1, 1999 for residential property must contain a prescribed statutory notice, in minimum eight point type, advising that law enforcement maintains for public access a statewide data base of locations of registered sex offenders.

Landlords are not required to provide any further information regarding the proximity of registered sex offenders in the neighborhood.

Thursday, July 7, 2011

Welcome back from the 4th of July holiday weekend. I know you did all the important things like barbecuing, soaking up sun, watching fireworks and installing carbon monoxide alarms in your home. Confused? A new California Law went into effect this past Friday July 1, 2011 requiring the installation of carbon monoxide alarms in single family residences. The law requires a CO alarm outside the sleeping rooms in their immediate vicinity (usually the hallway), and one on each level of the home including the basement.

If you haven't installed your CO alarms don't worry. Although, the fine for a violation of the law is $250 you do have thirty days to comply after being cited before the fine is imposed. So don't wait to be cited, head to home depot today and pick some CO alarms up. I suggest you don't purchase those plug-in alarms if you live with children or teenagers. Children play with everything and will pull out the alarms leaving you all in danger. Teenagers will pull out the plug-in alarm just to stop that annoying beeping.

It doesn't matter if you purchae a plug-in, battery, or hardwired alarm as long as you purchase and install them. The effect of CO poisoning can be fatal and the only way to prevent a fatality is to install an alarm. CO is odorless and colorless, so it's highly dangerous. I know because I suffered from CO poisoning when I was a teenager. We had a faulty heater in our home. I suffered from a headache worse than any pain I had ever felt. It was continuous and unbearable. Luckily, my parents got my brother and I to the hospital in time. We were there for hours, and as we were getting better we had to answer the silliest questions to make sure we didn't suffer brain damage. It was frightening, don't learn the lesson the way my family did. Install your CO alarms today!

Tuesday, March 22, 2011

On Saturday, March 26, 2011, from 9:45 to 11:30AM at Marshall Academy of the Arts in Long Beach, the Long Beach "Life Savers" will present the first in a series of free educational workshop programs designed to help regular people defend their rights, avoid scams, and protect their financial health in this down economy.

"This is not a sales pitch," says Long Beach Immigration Attorney, Alice Tadros. "There will be nothing for sale. It is just vital information that most people never get to learn."

The Long Beach "Life Savers" is a group of attorneys and professionals who have banded together to give back to the community by providing the most important commodity of all: Information. "When people know the rules that others are playing by, the game is more fair." Said Veronica Guzman, a Landlord/Tenant Attorney.

Marshall Academy of the Arts is located at 5870 E. Wardlow Road in Long Beach and doors open at 9:30AM. The event is free and open to the public. This is an information only session. No product or service will be offered or sold. For more information, contact Julaine Wagoner at (562) 234-8888 or Amy Becker (562) 489-6979.

Please help the Long Beach Life Savers protect as many people as possible by sharing this post with everyone in your network or contact sphere.

If you are a tenant and you fear that your landlord is going to lock you out of your apartment soon it is probably because you failed to realize the importance of all those court documents mailed to you (or posted on your door).

Once your landlord gives you a 3-day notice to pay or quit, you must pay the rent within that 3-day period or eviction proceedings in the court will commence. Once these court proceedings commence, it could mean that you will be on the hook for your landlord's attorney's fees.

If you pay your rent within that 3-day time frame, you are free; the eviction process cannot begin in the courts. If you pay your rent after the 3-day time frame and your landlord accepts the rent (meaning: cashes your check) the eviction process in the court ends!

WARNING:
If you turn in a rent check after the 3-day notice expires, and your landlord takes the check, make sure it is cashed! Otherwise, just because the landlord took the check, it doesn't mean you can ignore any court paperwork that you are subsequently served with.

What if there is already a judgment against me?
If you have received notice of a judgment against you, meaning you are officially being evicted, this could be a default judgment. The court or court clerk will enter a default judgment against you if you did not answer the court paperwork (complaint) served on you, and if you did not appear at the scheduled court hearing. The court looks at your failure to answer and appear as not contesting the eviction proceeding.

These are typical ways to set aside a default judgement:
1. A motion asking the court for relief based on "mistake, inadvertence, surprise, or excusable neglect." CCP473(b).
2. A motion indicating the judgment is void. This is usually where the court originally lacked jurisdiction to issue a judgment on the matter.
3. A motion asking the court for relief due to lack of actual notice. CCP473.5

Before filing a motion to set aside the default judgment, a stay of execution of judgment should be filed. A court can grant a stay based on its discretion (CCP 918) or due to extreme hardship on the tenant (CCP 1179).

IMPORTANT
Even if you win your motion, your landlord was still the prevailing party initially which means you would still need to pay attorney's fees.

These are motions that an attorney should help you with, you should not try to do it on your own! Another alternative is to just speak with your landlord and come to an agreement which could give you more time to move out. Sometimes landlords will allow you to stay in your apartment (and refrain from calling the Sheriff to lock you out) if you just pay all the rent owed and attorney's fees.

The material contained on this website should not be construed as legal advice on any subject matter and is not a substitute for legal counseling. No recipient of content from this site, clients or otherwise, should act or refrain from acting based on information at this site. The content of this website comes “as-is” and its accuracy, completeness, or applicability is not guaranteed. Law Office of Veronica R. Guzman expressly disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this site. Any transmission of information through Law Office of Veronica R. Guzman website is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Readers should not rely upon any transmission of e-mail messages to the Law Office of Veronica R. Guzman through this website to create an attorney-client relationship.

Thursday, January 27, 2011

When you first move in to a new apartment or home you are renting, you will pay a Security Deposit equivalent to a month or two of rent. When you move out, do you worry about getting it back? As a landlord, do you ever think "what am I really allowed to use this money for?"

First, let's look at your lease. It probably has a section that reads like this:

Security Deposit: Tenant shall deposit with Landlord the Total Deposit in Section X of this Agreement as a Security Deposit to secure Tenant's faithful performance of all of his or her obligations under this Agreement, including the payment of rent, and cleaning and repair of the premises upon surrender.

Essentially, a security deposit is a landlord's best guarantee against risks of rent nonpayment and damage to the premises.

Using the Security Deposit as Rent Payment

The landlord can use the security deposit to remedy tenant's failure to pay rent due to giving insufficient notice to terminate the tenancy. A tenant who vacates on insufficient notice is obligated to pay rent for the minimum notice period beginning when the tenant did give notice, or if no notice was given, beginning when tenant vacated.

Using the Security Deposit to Pay for Repairs

The security deposit can be used in repairing damage to the unit caused by the tenant or by the tenant's guests. This does not include ordinary wear and tear on the unit.

Using the Security Deposit to Pay for Cleaning

The landlord can only keep the amount in the security deposit that is needed to return the unit to the same level of cleanliness it was in at the beginning of the tenancy.

Landlords:

"Last month's rent". It is better not to label a portion of the security deposit as last month's rent because the tenant may be entitled to forego payment of the final month's rent by deducting it from the amount on deposit. This reduces the amount you can use to make repairs to the unit, and could require litigation against the tenant to get reimbursed for the damage!

Itemized Statement. Based on the initial inspection, the landlord must give the tenant an itemized statement specifying repairs and/or cleaning proposed to be the basis of deductions from the security deposit. Contact an attorney to obtain a form for itemized inspections.

Twenty-One Calendar Day Deadline. The landlord must provide the tenant with an itemized statement indicating the basis of any deduction, and refund any remaining portion of the security deposit, no later than 21 days after a tenant's vacancy. [Note: Failure to provide tenant with written accounting of the deducted portion of security deposit could mean that the landlord has to refund the entire security deposit to the tenant]

Renters:

Request an Inspection Before You Move Out. The initial inspection is required only if the tenant requests it, after having received notice of the right to request an inspection.

Receipts. Tenants should retain receipts or other documentation showing repairs or cleaning performed by the tenant prior to vacating.

PHOTOGRAPH the condition of the unit upon the start of the tenancy AND when the tenant vacates.

Landlords: Maintain complete WRITTEN records of all repair and cleaning costs upon which any security amount is based.

Understand that after the initial inspection, but before the tenancy terminates, the tenant must be given an opportunity to repair or clean the identified problems in order to avoid deductions from the security deposit.

Tuesday, January 18, 2011

In a recent issue of the Apartment Owner's Association magazine, a reader (landlord) wrote in stating he began eviction proceedings against a tenant who contested the case by alleging the landlord refused to take care of a rat problem. The reader/landlord asked for suggestions on how to handle the situation in court. The attorney answering that month's question jokingly suggested the landlord tell the judge that the tenant breached the lease by having pets!

Answer
In fact, the tenant can claim that the landlord's failure to take care of the rat problem is an affirmative defense to eviction proceedings! Under such circumstances, the landlord would not be entitled to regain possession of the premises (cannot evict you at that time). In legal terms, this means that the landlord breached the warranty of habitability inherent in a residential tenancy. Your duty to pay rent as a tenant is dependent on the landlord providing you with premises that are habitable.

The Law
In the landmark case of Green v. Superior Court, the California Supreme Court held that a warranty of habitability is implied in ALL residential rental agreements. California statute also prohibits landlords from keeping premises "untenantable". (See Civil Code 1941.1) In our rat problem case, this means that the landlord must keep clean and sanitary premises - building, grounds and common areas that are sanitary and free from rodents and vermin!

However, landlords are not required to make sure the premises are in a perfect, and beautiful condition. There must be a substantial lack of clean and sanitary conditions. For example, the following were determined to be substantial violations:

Although the above cases involve rodents with other terrible problems, an intense rate problem (substantial infestation) could come to the level of a breach by the landlord if the landlord does not take care of the problem.

There must be Notice to Landlord with Opportunity to Repair
The law does not hold landlords accountable for problems that they were not aware of or for problems that would not have been disclosed by a reasonable inspection. Thus, in order to assert a breach of the warranty of habitability the landlord must have notice! This means the tenant must tell the landlord of the rat problem in the apartment. The landlord would also have notice if it is clear through "reasonable inspection" that an apartment or building has a rat infestation. Either way, tenants should always be advised to give written notice to their landlords immediately upon discovering an uninhabitable condition! In this written notice, the tenant should state a specific reasonable deadline for remedy in the notice, after which the tenant can initiate a lawsuit. Sometimes asking an attorney to write the letter on the tenant's behalf will light a fire under the landlord to get the job done sooner.

What to do Next:
If you have rats or other vermin in your building, you should:

Obtain an inspection and report from a local agency (health and safety department, building safety department, or housing department)

Follow up on issuance of the citation

Photograph the conditions

Allow inspection by attorneys if the landlord has not fixed the condition

Beware!
The implied warranty of habitability is not a defense when the "breach" was caused by the tenant! You cannot profit from your own wrong. It is the tenant's responsibility to to repair deteriorations and injuries to the premises caused by her own lack of care. This includes disposing of garbage and other waste in a clean and sanitary manner. Therefore, if a tenant(s) keeps an unsanitary apartment or leaves trash and garbage around the building or outside the dumpster (instead of inside) and this results in the "rat problem", the tenant may not be able to blame the landlord.